LTC Bullet:  The Plot Thickens 

Thursday, February 16, 2006 

Seattle-- 

LTC Comment:  A NAELA Medicaid planner in Alabama has sued the federal government to enjoin enforcement of the Deficit Reduction Act of 2005.  More after the ***news.*** 

*** TERRY SAVAGE SAYS:  "Stephen -- I've been on the road for the past few days, and never did take time to send you a HUGE THANK YOU!  The book jumped up to about 140 on Amazon.com, so I really think your review had some impact!"  After LTC Bullets reviewed the nationally syndicated financial columnist's new book The Savage Number:  How Much Money Do You Need to Retire?, it quickly shot up in Amazon.com's ratings.  What better reason could you have to sponsor an LTC Bullet and get that kind of wide-reaching publicity for yourself and your company?  To sponsor a Bullet or join the Center, or schedule a training and motivation conference call or on-site seminar for LTC agents or senior advisors, contact Steve Moses at 206-283-7036 or smoses@centerltc.com. *** 

*** NEED FOR LTC PLANNING:  "A new study in today's New England Journal of Medicine shows just how stressful caring for a spouse with a debilitating disease can be.  Researchers have found that caregivers whose spouses are hospitalized with some mentally or physically disabling diseases face as great a risk of dying themselves as if their sick spouse had died.  The greatest risks are posed by spouses suffering dementia, psychiatric disease and congestive heart failure, the study found."  (Source:  Suzanne Sataline, "Caregiver Mortality Is Linked to Degree of Illness Spouse's Risk of Death Rises In More Debilitating Cases; Women Face Bigger Threat,"  Wall Street Journal,  February 16, 2006, Page D6, http://online.wsj.com/article_print/SB114005917804175541.html; online subscription required.)  LTC planning won't eliminate the emotional stress of long-term chronic illness but it can certainly relieve the associated financial stress and open all kinds of caregiving options for families that are closed to people dependent on public welfare.  *** 

*** LTC PARTNERSHIPS:       For a generally accurate story about the expansion of LTC Partnerships by the contentious Deficit Reduction Act, see "New Law Pushes Long-Term Care Coverage," by Daniel C. Vock of Stateline.org at http://www.stateline.org/live/ViewPage.action?siteNodeId=136&languageId=1&contentId=89158.  We'd qualify such a positive review of the article by saying, however, that like nearly every other story about the LTC Partnerships, this one also fails to point out Medicaid's dismal reputation for problems of access, quality, reimbursement, discrimination and institutional bias.  People encouraged by official government policy to coordinate benefits between quality private insurance products and a bankrupt public welfare program like Medicaid should at least be warned of the serious risks to their health and independence that Medicaid dependency entails. *** 

 

LTC BULLET:  THE PLOT THICKENS 

LTC Comment:  Is it the law of the land or isn't it?  Will the DRA stop Medicaid abuse, or won't it?  Can LTC Partnerships expand, or not?  Here's how this legislative cliff-hanger stood when last we covered it two days ago. 

After months of hearings, razor-thin victories in both houses of Congress, a miraculously positive Conference Committee report, two more skin-of-your-teeth wins in both branches, and a signing ceremony at the White House, a goofy glitch occurred. 

While it's still not entirely clear what happened, it seems a clerical error caused the House--for a second time--to pass a version of the Deficit Reduction Act that was not identical in every jot and tittle to the version passed by the Senate. 

That's a no-no constitutionally, say opponents of the law, who've fought it tooth and nail every step of the way.  Just a technicality say proponents, a common mishap in complicated statutory language often and easily corrected. 

But this time, it's different.  President Bush signed the bill before the matter was resolved! 

So, here's the latest.  Yesterday, a Medicaid planning attorney sued Alberto Gonzales, Attorney General of The United States and Deborah J. Rhodes, U.S. Attorney for The Southern District of Alabama in federal court challenging "the constitutionality of a federal Act entitled 'The Deficit Reduction Act of 2005', also known as Senate Bill S. 1932 (herein called 'the Act.')." 

The complaint claims that the DRA "was purportedly signed into law by President George W. Bush on February 8, 2006 to become effective immediately.  The manner of passage of the Act creates a cause of action for declaratory relief for any person who has an interest in Medicaid laws for nursing home eligibility, Medicare laws for durable medical equipment, and other persons affected by the Act.  Plaintiff Jim Zeigler alleges that the Act was not constitutionally enacted in that differing versions passed the U.S. House and the U.S. Senate.  The version that was signed into law by the President never passed the U.S. House." 

The lawsuit alleges that "Zeigler is personally and substantially hindered in his legal practice because he is uncertain as to whether to proceed under the previous law, which is constitutional, or the Deficit Reduction Act of 2005, which he alleges is unconstitutional, unenforceable and null."  

For relief, Zeigler's suit "seeks judgment that the Deficit Reduction Act is unconstitutional, both facially and as applied to the Plaintiff and his practice of elderlaw, because the Act violates express and clear requirements of the U.S. Constitution for a bill to become law, specifically Article I, Section 7."  Naturally, he also wants reimbursement for "attorneys' fees and costs." 

Now, let's unravel this situation a little.  What does Congress say about the matter?  According to the Associated Press as reported in today's New York Times:  "Even though Alabama attorney Jim Zeigler has filed a lawsuit charging the $39 billion deficit-cutting legislation Bush signed is unconstitutional because the House and Senate failed to pass identical versions, House GOP leaders insist there's no problem.  'I believe that it's law,' said House Majority Whip Roy Blunt, R-Mo."  According to today's CQ Today, "Republican leaders . . . have dismissed the legal issues with the case, arguing that the law is valid because House Speaker J. Dennis Hastert, R-Ill., and Senate President Pro-Term Ted Stevens, R-Alaska, certified that the bill signed by the president was correct."  So, Congressional leadership doesn't see a problem.   

Next question, who's stirring the pot?  According to yesterday's Congressional Quarterly, attorney Zeigler who filed the suit is "a conservative Republican lawyer."  Why would an otherwise supposedly loyal and dedicated Republican fight his party's leadership in Congress on a matter so critical to the country's fiscal well being?  Who is this guy, anyway? 

We paid a visit to Mr. Zeigler's website at www.jimzeigler.com to find out.  We found a typical Medicaid planning hustle.  For example: 

Website heading:  "Jim Zeigler, Attorney:  Long-Term Planning, Asset Protection, Medicaid Eligibility"  

"It is now more important than ever to have a legal plan for paying long-term care costs.  There are three ways to develop such a plan:
1. Attend a FREE WORKSHOP.
2. Order a FREE EVALUATION online.
3. Order my new E-book 'Don't Let the Government take Grandma's Home and Life Savings:  2006 Update.'" 

"We can even save assets for folks ALREADY IN the nursing home or about to go in." 

"Free Workshops on NURSING HOME ELIGIBILITY . . .  Learn How to Get Nursing Home Costs Covered . . . Led by Medicaid Eligibility Attorneys . . . New Workshop Cities Being Added" 

Zeigler's website listed eight workshops scheduled in various Alabama cities between February 15 and February 21. 

"If you or a loved one is ever admitted to a nursing home, how will you pay the $4,000 to $7,000 a month costs?  Can you qualify for Medicaid coverage? . . .  You have come to the newest resource for getting nursing home costs paid.  You can receive a FREE no-obligation analysis of your personal situation for nursing home eligibility.  Order your evaluation for free which would cost you $2,000 to $5,000 from some lawyers." 

"FREE EVALUATION OF YOUR LONG-TERM PLANNING FOR NURSING HOME COSTS  (available anywhere in USA)  For a confidential FREE EVALUATION of your eligibility for programs to pay future nursing home costs, CLICK HERE.  Valid in any US state or territory.  FREE EVALUATION OF YOUR CLAIM  (available anywhere in USA) For a confidential FREE EVALUATION of your claim of $10,000 up, CLICK HERE.  Valid in any US state or territory." 

Get the drift? 

(Caveat:  Caught shamelessly selling artificial impoverishment to qualify for public welfare, Medicaid planning attorneys often cover their tracks by removing offensive, self-incriminating material from their websites.  The preceding quotes were downloaded from Mr. Zeigler's website at 7:15 AM PST on Thursday, February 16, 2006.  We make no contention about what may or may not be at that URL at any later time.) 

According to the National Academy of Elder Law Attorneys' website at www.naela.org, Mr. Zeigler is a member of NAELA, which is the national trade association of Medicaid estate planners.  (Verified 9:10 AM PST, Thursday, February 16, 2006.) 

Is it starting to become more clear what's happening?  Medicaid planners all around the country fought to prevent passage of the Deficit Reduction Act because it derails their welfare-financed gravy train.  They were joined by other groups and organizations with a stake in preserving Medicaid as financial trough for affluent people at the expense of the poor, tax payers, LTC providers, and LTC insurers.  

We believe that is why Mr. Zeigler misrepresents the DRA by stating untruthfully in his lawsuit that it "penalizes senior citizens who are faithful givers to their churches.  It makes them ineligible for Medicaid nursing home coverage until a 'penalty' is paid for every dollar gifted during five years prior to nursing home admission."  As we've explained in this space many times before, federal law prohibits imposing a transfer of assets penalty unless the assets were transferred for less than fair market value and for the purpose of qualifying for Medicaid. 

That's the story up to the hour.  Will the Medicaid planner's lawsuit get traction in the courts?  Can Congressional leadership carry the argument that the DRA is law?  Who else will join the fray?  Why aren't the LTC providers and insurers, whose livelihoods are threatened by Medicaid planning abuse, speaking up?  

Stay tuned for the next exciting episode.  We'll keep Center for Long-Term Care Reform members updated by email on every twist and turn.